ASHOK KUMAR SINHA Vs. PATNA UNIVERSITY

JUDGEMENT

(1.) IT is not in dispute that the petitioner is a confirmed teacher of Patna University (hereinafter called the said University). The petitioner was initially appointed as temporary Lecturer in English in the said University on 25.11.1966. Then on the recommendation of the Bihar Public Service Commission, the petitioner was issued an order of appointment to the said post which was approved by the Syndicate vide notification dated 16.7.1968. Such appointment letter of the petitioner was issued under the signature of the Registrar of the said University. Thereafter the services of the petitioner as Lecturer of the said University was confirmed and he was promoted to the post of Reader in English with effect from 14.11.1980 vide notification dated 29.9.1981. The petitioner was further promoted to the post of University Professor of English in the said University with effect from 5.8.1988 vide order dated 20.8.1988. Then the order of promotion of the petitioner was revised with retrospective effect from 1.2.1985 by an order dated 19.5.1989 issued under the signature of the Registrar of the said University. While the petitioner was working as a University Professor in the Post Graduate Department of English of the said University, he was offered the post of Professor in English in Samna University (hereinafter called the foreign University), Yemen, initially for a period of two years. As such the petitioner had to apply for leave in order to work in the said foreign University and by an order dated 12.2.1993 issued under the signature of respondent No. 4, the Assistant Registrar of the said University, the petitioner was granted permission to leave the said University in anticipation of sanction of his leave with effect from 13.2.1993. The said order permitting the petitioner to proceed to join the said foreign University dated 12.2.1993 is at Annexure -1 to the writ petition. Thereafter leave was granted for two years by an order dated 27.4.1993. The said period of two years was to expire on 11.2.1995 if the period of two years is counted from 12.2.1993. Before the expiry of the said period of two years, on 13.7.1994, a letter was sent by the Dean, Faculty of Education, Sanna University, Hodeidah, Yemen to the Vice Chancellor of the said University requesting him to extend the leave of the petitioner for a further period of two years with effect from February, 1995. Thereafter the petitioner also, before 11.2.1995, applied for extension of leave for two years on 6.2.1995 but the authorities of the said University initially remained silent and after expiry of the said period of two years by an order dated 5.8.1995 rejected the petitioner's prayer for grant of leave for another period of two years from February, 1995 and asked the petitioner to join the post immediately and stated that tailing which action to terminate the services of the petitioner from the said University shall be taken. The petitioner thereafter wrote further letter to the Registrar of the said University through the Head of the Post Graduate Department of English of the said University explaining his position and also explaining the fact that under the Statute of the said University, an employee can be on extraordinary leave without pay for five years at a stretch and before the petitioner could know the refusal by the University, he had already entered into a further contract with the foreign University and a breach of contract will tarnish the image of the said University abroad. As such a request was made to allow the petitioner to work upto the end of July, 1997. Thereafter comes the University letter dated 5.2.1996 rejecting the petitioner's application for grant of two years extraordinary leave and directing the petitioner to join the post within six weeks from the date of issue of letter dated 5.2.1996 and it was again reiterated in the said letter that failing which action to terminate the services of the petitioner from the said University shall be taken. The said letter dated 5.2.1996 has been disclosed by the learned Counsel for the University in the affidavit filed in this proceeding. Ultimately came the impugned order of the University dated 13.8.1996 whereby the petitioner was informed that as he did not join the said University service, despite request, his services from the said University was terminated with effect from the date the petitioner was away from the University i.e. 13.2.1993. Such order was passed by the Registrar of the said University on 13.8.1996. Therefore, the University authorities wanted to terminate the services of the petitioner with retrospective effect from 13.2.1993. In the meantime, the petitioner made another representation on 8.8.1997 for extension of his service and in answer to Clause 6(17) of the University Statute and Section 7(3)(b) of the University Act the petitioner's prayer was rejected and the services of the petitioner has been terminated. However, in the said letter dated 11.9.1997 the order of termination has been reiterated and it is stated that the said order of termination comes into effect from 13.2.1993. This order dated 11.9.1997 has been disclosed with the application for amendment filed by the petitioner.

(2.) FROM the aforesaid narration of facts, which are not much in dispute, the following position emerges:

(3.) LEARNED Counsel for the said University authorities has contested the case of the petitioner and from the counter affidavit filed on behalf of the University, it appears that the aforesaid facts which have been stated in the writ petition have not been very much disputed and it has been stated in the counter affidavit that the University authorities did not grant extension of leave to the petitioner as the teaching was being hampered for shortage of teachers in English and the University asked the petitioner to join his post in Patna University and the petitioner was also informed that failing which action to terminate the services of the petitioner from the said University shall be taken and as the petitioner did not join or report for duty in the said University, the University authorities after, waiting for six months from the date by which he was asked to join the duty, terminated his services by letter dated 13.8.1996 from the date when the petitioner proceeded on leave. In so far as the petitioner's prayer for voluntary retirement is concerned, it has been stated that the petitioner never applied for voluntary retirement when he was on leave and since the cases to be the employee of the said University with effect from 13.2.1993, such prayer of voluntary retirement to the petitioner cannot be considered. It has been further stated that since there is no charges against the petitioner, there is no question of holding a departmental enquiry. With regard to the impugned order of termination, it has been stated in paragraph 8 of the counter affidavit of the said University that the said order of termination was passed by the Vice -Chancellor on the direction of the Syndicate that the same was communicated to the petitioner by the Registrar of the said University. The two Illustrations which the petitioner cited in his writ petition, namely, about Prof. Dr. Vijay Pratap Singh and Dr. Janardan Prasad Singh, those cases have been dealt with in paragraph 10 of the counter affidavit and virtually from statements made in paragraph 10 of the counter affidavit it appears that the petitioner's case as made out in paragraphs 22 to 24 of the writ petition has been virtually accepted. In paragraphs 22 to 24 of the writ petition the petitioner stated that these two persons, namely, Dr. Vijay Pratap Singh and Dr. Janardan Prasad Singh, both University Professors in English and both of whom had joined the said foreign University were granted the benefit of voluntary retirement after joining the University after five years of leave and in case of Dr. Janardan Prasad Singh, he also remained on leave for more than two years and he was also given the benefit of voluntary retirement but in the case of the petitioner he has been sought to be punished with the order of termination of service. Thus he has been given a discriminatory treatment which is violative of Article 14 of the Constitution of India.